NATIONAL LEAGUE OF CITIES (NLC) FILES PETITION FOR RECONSIDERATION IN FCC CELL TOWER SITING PROCEEDING

Last November, the Federal Communications Commission (FCC) issued an order that, among other things, sets presumptive deadlines of 90 days (for co-location applications) and 150 days (for all other wireless siting applications) within which a city must act on wireless tower applications. (See the December 10, 2009, edition of the Legislative Update for background information.) The following is an update from the National League of Cities on a challenge to that order.

On December 17, NLC, joined by the National Association of Telecommunications Officers and Advisors, the National Association of Counties, the United States Conference of Mayors, and the American Planning Association, filed a Petition for Reconsideration with the FCC as to a part of the FCCs recent ruling developing a shot clock for tower siting application review.

Although the entire rule and the FCCs claim of legal authority to issue are troublesome to NLC, the petition focused on one of the most troubling aspects of the ruling. In addition to establishing deadlines of 90 days for collocation application reviews and 150 days for reviews of all other applications, the ruling gave a local government the ability to toll those shot clocks when an application was incomplete. However, the local government would only have the power to toll the shot clock because the application was incomplete if it discovered the incompleteness within 30 days of when the application was submitted. This rule has the potential for serious unintended consequences, especially when problems with an application are only apparent after 30 days through no fault of the local government, or when third parties (or the applicant) hold up the review process.

The groups petition focused on this 30-day incompleteness deadline. First, the petition argues that the FCC (even under its own, incorrect, understanding of its authority) exceeded its power by issuing this rule. Second, the petition discusses some of the numerous practical problems with the 30-day incompleteness deadline. Third, the petition expresses our concern about the origin and thought process behind this rule when the rule wasnt requested by the initial petitioner (the national wireless association), was included without discussion in any partys comments or ex parte presentations, and was included without preliminary discussion with any local government.

The petition requested that the FCC remove or revise the 30-day deadline and give local authorities the ability to toll the shot clock for legitimate reasons at any point during the review process. To accompany this petition, the groups also filed an Emergency Motion for Stay requesting that the Commission suspend the entire ruling or at least the 30-day incompleteness deadline until there is more deliberation on this issue.

The petition does not address the FCCs legal authority to institute the 90- and 150-day shot clocks. The petition makes clear to the FCC that we are not accepting their argument that they acted within their authority.

Reprinted with permission from the National League of Cities. In addition, the City of Arlington, Texas, recently filed a petition for review of the FCC order with the United States Court of Appeals for the Fifth Circuit. Arlingtons petition alleges that the FCC had no statutory authority to issue the order.

TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League.